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As the coronavirus pandemic continues to disrupt multiple facets of life across the United States, questions continue to arise related to working parents caring for school aged children. On Friday, June 26, 2020, the Department of Labor (“DOL”) issued two Field Assistance Bulletins
FIELD ASSISTANCE BULLETIN No. 2020-3 (FAB No. 2020-3) and
FIELD ASSISTANCE BULLETIN No. 2020-4 (FAB No. 2020-4); relating to whether school is considered “in session” for purposes of employing children under the age of 16 and whether canceled summer camps entitle parents to paid leave under the Families First Coronavirus Response Act (“FFCRA”).
FIELD ASSISTANCE BULLETIN No. 2020-3
Depending on whether school is “in session,” and whether a child is working in an agricultural or nonagricultural setting, federal child labor regulations limit the number of hours certain children may work. Generally speaking, federal regulations specify that for non-agricultural employment, school is considered “in session” during any week in which a public-school district requires students to attend school
either physically or through virtual or distance learning. For agricultural employment, school is “in session” based on the school calendar for the public-school district where the minor lives.
As the summer months continue, and schools contemplate re-opening or extending the school year with virtual learning and summer school, how can these decisions impact whether a school is “in session” for purposes of school aged children working?
FAB No. 2020-3 makes it clear that for non-agricultural employment, if a public-school district physically closes schools but requires all students to continue instruction through online or virtual learning, school is “in session.” In a slightly similar fashion, for agricultural employment, if a school district is requiring online or virtual instruction, school is “in session.” Finally, while summer school is typically considered outside of normal school hours, if a school implements mandatory summer school sessions for all students, the school will be considered “in session” during that time period.
DOL’s new guidance appears to take an all or nothing approach in determining whether school is “in session.” If a school district is extended learning for all students, school will likely be “in session.”
FIELD ASSISTANCE BULLETIN No. 2020-4
Under the FFCRA, Employees are eligible for FFCRA leave if they unable to work or telework due to a need to care for their child whose school, child care provider or place of care is closed due to COVID-19. FAB 2020-4 clarifies that under the general FFCRA framework, summer camps are a place of care, and cancelled summer camps may entitle parents to FFCRA leave.
FAB 2020-4 makes it clear that cancelled summer camps may qualify as a place of care for purposes of FFCRA leave. Whether a parent is entitled to leave for a canceled summer camp is heavily dependent upon whether the parent’s child was enrolled in the camp prior to its closure, and/or any steps that may have been taken to enroll the child in the camp prior to its closure.
A closed summer camp may be considered a child’s place of care if they were enrolled in the camp prior to its closure. If a child was not fully enrolled in a summer camp prior to its closure announcement, the child’s parent still may be entitled to leave if the parent can show; (1) a plan to send his or her child to a summer camp or program, or (2) that even though the employee had no such plan at the time the summer camp or program closed, his or her child would have nevertheless attended the camp or program had it not closed.
Finally, FAB 2020-4 makes it clear that an employee who requests leave to care for his or her child based on the closure of a summer camp, must provide the typical substantiating documentation required for FFCRA leave. As such, parents who provide their employer with the name of their child, the name of the canceled summer camp and a statement that no other suitable person is available to care for the child, have satisfied their documentation requirements for seeking FFCRA leave.